Extra special thanks to Holice B. Young for transcribing this series of books!

CHAPTER XVI.

SEARCHING OUR TITLE--TREATS OF THE VALIDITY OF OUR
TITLE--ITS CONTESTANTS AND EFFORT FOR FINAL
"QUIETING" BY

TREATY WITH GREAT BRITAIN.

"Fifty-four Forty or Fight"
"A wordy war, with bitter ardor waged,
Fierce in discussion while the conflict raged,
A game of 'brag,' too oft to treachery too,
It stakes the region then so wild and new,
The hunters haunt the home of deer and stag,
Its roof the pine, each snowy peak its flag,
Emblem of truce and peace one day to be,
Of empire linking east with western sea."

--BREWERTON.

Having now, as a skillful engineer lays down his approaches, making
gradual advances to the work he proposes to attack, environed out
subject, so to speak, both by land and water, it if high time to take
possession of such outworks of fact as may finally lead to the capture
of the whole subject and encente of this our history of the State
of Washington.

When a man purchases an estate, before entering, and making
improvements his first anxiety is to ascertain the validity of his title
and the security of the foundation on which he rests his claim. To do so
thoroughly he must go to the fountain-head of ownership, examine
records, ancient and modern, look into the liens and mortgages which
might affect it, the sufficiency of the witnesses who certify to its
testaments, and in all respects assure himself that it is perfectly sound
and good, even though his quest should take him back to a period when,
as the old English law quaintly expresses it, "the memory of man
runneth not to the contrary."

States, like individuals, must hold their possessions under certain
conditions fixed and regulated in their case and laid down

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in what is generally known as the "law of nations." It may
e by right of first discovery, enforced by colonization; by peaceful
purchase or similar condition, or by conquest of war permanently
confirmed by treaty on cessation of hostilities. It becomes us, then, as
citizens of this sovereign State and commonwealth of Washington, to know
how our title to this fair domain on which we dwell was acquired, by
what claimants opposed, their grounds of action and the legality of the
manner in which our own title was finally assured and quieted. In so
doing, however, we do not propose to try back to the period of which we
have spoken--"when the memory of man runneth not to the
contrary"--nor shall we enter into the intricate details of
protocols, protests, arbitrations, and conferences, finally ending in
that mutual agreement of the "high contracting powers" which
we call a duly ratified treaty. Our search must be a skeleton at the
best, dating back to the beginning of this century, when the situation
of affairs on the Northwest coast may be briefly summed up as follows:
The boundaries were unsettled and conflicting, the claimants and parties
inaction being four--Russia, Spain, Great Britain, and the United
States.

We will touch lightly, by way of preface, upon the claims of the two
powers first named--Russia and Spain--as those soonest disposed of and
least interesting to ourselves, because involving no particular conflict
with American interests.

Russia demanded all the territory north of 51°, with its adjacent
islands. This she founded on the discovery of Russian navigators. The
limits of her claim will be found in the imperial grant issued by the
emperor Paul to the Russian-American Fur Company in July of 1799. It is
further strengthened by the declaration that the whole of the Pacific
north of the latitude mentioned was "a closed sea," because
completes bordered by Russian territory--a vexed question, entering into
the sealing difficulties of our own day. Russia again asserts her
claims, and that in no uncertain language, but autocratic as the Czar
himself, in its imperial ukase of September 4th, 1821, which
declares, "that the whole west coast of America north of the
fifty-first degree, the whole east coast of Asia north of 45° 50'm with
all adjacent and intervening islands, belong exclusively to Russia: and
it also prohibits the citizens and subjects of all other nations, under
severe penalties, approaching within one hundred

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miles of any of these coasts except in cases of extreme
necessity."

It is not necessary to pursue the Russian title, as Mr. Seward's
farseeing and most fortunate purchase of Alaska settled for a very
reasonable sum, though counted extravagant at the time, all controversy
with that nation.

Spain, a asserted by Chevalier de Onis, her Minster at Washington,
defines her rights as follows:

"The right and dominion of the crown of Spain to the Northwest
coast of America as high =as the Californias is certain and
indisputable, the Spaniards having explored it as far as 47° in the
expedition under Juan de Fuca in 1592, and in that under Admiral Fonté
to 55° in 1640. The dominion of Spain in its vast regions being thus
established and her rights of discovery, conquest, and possession being
never disputed, she could scarcely possess a property founded on more
respectable principles, whether of the law of nations, of public law, or
of any others which serve as a basis to such acquisitions as compose all
the independent kingdoms and States of the earth."

Evans tells us that this clear and concise enunciation was uttered by
the chevalier :at a time when Spain was asserting title adversely to all
other nations. It was the same that she had claimed for centuries."

These utterances interest us, because by the Treaty of Florida, dated
February 22d, 1819, (which left the Saline river the western boundary of
the United States), our southern boundary was defined by "a line
drawn on the meridian from the source of the Arkansas River northward to
the forty-second parallel, thence along the parallel to the Pacific
Ocean (afterward adopted, January 12th, 1828, by treat with
the republic of Mexico as the northern boundary of our sister
republic--that is to day, the western and southern line of the United
States as land down in the Florida treaty). By this solemn convention we
became possessed of all the rights of Spain to any territory north of
the said forty-second parallel----a cession which closes our search for
title so far as this power is concerned, leaving only the conflicting
claims of Great Britain and the United States to be considered; for with
Russia we have no quarrel, and by the Florida treaty just referred to we
become Spain's successor in interest, being clothed with all rights and
powers growing our of her discoveries and explorations on the Northwest
coast.

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The contestants in this long and bitter struggle for territorial
supremacy were thus reduced to America and Great Britain, the other
nations represented--Russia and Spain--having bartered their claims or
rested in armed neutrality, more spectators of the fight. The tilting
grounds were the cabinets of England and Washington; the reward of he
victor, the virgin wilds, almost unbroken, of our own Northwest. The
champions who stood forth, either a challengers or defenders, to lose
fame or win renown in this diplomatic tourney, were the best and wisest
among the statesman and publicists on both sides. The spectators before
whom they encountered were the representatives of the courts of
Christendom, and in a lesser degree, yet most interested in the result,
every hunter and trapper, every axeman, settler or emigrant who loved
his flag and remembered his nationality amid the then far-off wilds of
our present State of Washington. With the knightly courtesy of
"distinguished consideration" they dipped their pen lances in
ink, using every feint and guard, every thrust and parry of treaty or
protocol, protest, precedent, or proviso known to modern diplomacy to
defeat their opponents. Musty documents were ransacked, ancient archives
consulted; half-forgotten journals of mariners and adventurers long
since passed away suddenly became of cast importance. The laws of
nations were invoked, Vattel and Puffendorf quoted as never before, oftimes
breathed a spirit of defiance and presumptions which sounded
like bugle blasts inviting to battle. One and again did we tremble on
the verge of actual war. Assumptions were made which, if adhered to,
would have mobilized armies and sent fleets to every sea. But for the
action of Scott, the fiery Harney would have opened a fire whose iron
hail had speedily ended the harmless interchange of paper bullets.
"Fifty-forty or fight" was not merely the slogan of a
Presidential conflict, or the catch cry of an excited election; it
"meant business;" it was the stern determination of a nation
that knew its rights and meant to maintain them at any cost. It is true
that we yielded too much--far too much--to Great Britain in that final
settlement which fixed our present Northwestern boundary; but
treaty-makers are inclined to be conservative, and err, unless fresh
from some recent battle-field, upon the side of conservatism. But
history repeats itself, and America may

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afford to patiently bide her time, well assured that the arbitrations
of peace or the accidents of war will sooner or later give to the United
States the limits assigned by nature and nature's God--boundaries whose
fated termini are the billows that wash the shores of the North American
continent and have those out-lying island which rightfully belong to us
as the sentinels and guardians of our coast.

Let us, then, proceed to trace, as a general gallops down the line
and reviews the battalions of his army, the sequence of events which
marked the ebb and flow of this diplomatic war.

We have now to deal with England, ever a most determined antagonist,
fighting for every foot of the territory in dispute, conceding nothing
save under protest, exhausting technicalities, and eve when visibly
beaten yielding ungraciously, making her concessions a matter of favor
rather than of right; giving ground like an experienced fencer, who
bides his time and only waits his opportunity to make a more deadly
lunge. Her proceedings in the open court of national arbitration and
adjustment were as fruitful in arrogant pretensions, false pretenses and
assumed promises as her more occult methods were unworthy, being
conducted through the medium of the elaborate systems of her secret
agents, the Hudson's' Bay and Northwest Fur companies.

While touching rather delicately upon the vexed question of
"original right and first discovery," where her own
legislators must have perceived the weakness of their case, Great
Britain seemed inclined to trust herself to the oft-repeated legal
assurance that "possession is nine tenths of the law," an
argument for the maintenance of which her agents already referred to had
most industriously prepared the way.

England did not, it should be remembered, assert an exclusive right
to any portion of the Northwest coast; at the same time, she had no idea
of relinquishing any advantage which might be founded upon the voyage of
Drake, Cavendish, Cook, or Vancouver to our coast, or the inland
explorations of the indomitable Sir Alexander Mackenzie. These men had
displayed that historic flag which the poet tells us has

"Braved a thousand years the battle and the
breeze."
and with more or less of ceremony had taken possession
in the name of the British crown, ofttimes regardless of the fact that a

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newer ensign had seen its stars reflected in those waters before
their later visits, and forgetful of previous footsteps in their
twice-trodden inland paths. Her negotiators thus defined her status:

"Great Britain claims no exclusive sovereignty over any
portion of that territory. Her present claim, not in respect to any
part, but to the whole, is limited to a right of joint occupancy in
common with other States, leaving the right of exclusive dominion
in abeyance. In other words, the pretensions of the United States tend
to the ejection of all other nations, Great Britain among the rest, from
all the rights of settlement in the district claimed by the Untied
States. The pretensions of Great Britain, on the contrary, tend to
the mere maintenance of her own rights in resistance to the exclusive
character of the pretensions of the Untied States."

Evans puts the situation so clearly and forcibly that we despair of
improving upon it, and so quote at length, as follows:

"Fairly stated, Great Britain asserted no exclusive title,
but preferred to acquire and rely upon possession, strengthening
her claim by settlements permitted by other nations, who in such
permission admitted that their title was insufficient to
authorize her exclusion. Being thus in possession, and herself the judge
of the indefeasiblity of an adverse title, she could elect whether she
would be ousted. The situation is thus defined: 'While we have not the
title, we want the possession; in the mean time, we do not admit that
your title is any better than ours--in other words, just such a title as
in all ages of the world might has made right.'"

To this claim the United States opposed a twofold right: We had
discovered the Columbia River when Gray sailed into it and informed
Vancouver of its existence; Lewis and Clarke had explored its banks ands
tributaries; Americans had settled beside its waters. "It is a law
of nature, universally recognized, that the discovery of a river
followed by occupancy secures the right to the territory watered by it
and its tributaries." Hence we claimed the country lying west of
the Rocky Mountains between 42° and 51° north latitude, subject, of
course, to the claim of Spain, and the rewards of whose previous
explorations became ours by the Treaty of Florida. Where is the flaw in
our premises, the missing link in our claim of evidence to a good and
sufficient

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Title? But we strengthen this by our additional pretensions as
"successors to France" by virtue of the Louisiana purchase in
1803, "by which we acquired the claim of continuity to the
territory from the Mississippi westward to the Pacific, of the breadth
of that province, its north line, according to the Treaty of Utrecht
(1713), being the dividing line between the Hudson's Bay territory and
the French provinces of Canada." The doctrine of continuity has
been recognized as a strong element of territorial claim, and its
application universal in the colonization of the Atlantic seaboard. All
European powers, in making settlements, maintained that colonial grants
or charters (if not otherwise expressed) comprised not only the limits
named therein, but included a region of country of like breadth
extending across the continent to the South Sea or Pacific Ocean. For
the integrity of this principle the war between Great Britain and France
was waged, terminated by treaty in 1763. By that treaty the former power
received Canada and Illinois; renounced to France all territory west of
the Mississippi, and thereby surrendered any claim to continuity west of
that river. So we, as successors to both France and the rights acquired
b y treaty with Spain, backed by first discovery and occupation of the
Columbia and its tributaries (which must to any fair and legal mind give
a perfect title to the United States of the whole territory in dispute),
were, and ought to be, seized of even more than the Northwestern
territory we now possess.

With a view to settle this vexed question, negotiations were
attempted in 1807, which, as far as we were concerned, did not touch our
territory, and, beyond a British effort to beguile us into trouble with
Spain, came to naught. Another effort was made in 1814. The United
States offered to settle on the basis of the forty-ninth parallel from
its intersection by a line drawn from the most northwestern point of the
Lake of the Woods westward to the Rocky Mountains, or to the territory
belonging to or claimed by either party on the continent of America to
the westward of the Stony Mountains. This would have been acceded to,
but England wanted the right of navigation of the Mississippi River from
British America to the Gulf of Mexico. This was asking too much, so that
item of the Treaty of Ghent failed to materialize. It only touched our
local interests in a clause which covered the rendition of Astoria.

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It is more than probable, if the real value of this Northwest
territory had been known to our statesmen--as it was, through the large
returns of its fur trade, patent to the British--there would have been
less apathy and more decided action on our part. As it was, we treated
it as a matter of little accounts, and permitted England to establish a
kind of occupancy which, under other circumstances, might have brought
about an American emigration that would have more than balanced the
influence of the fur companies' employees, and prepared the way to its
speedy settlement and Americanization. Still another attempt made, but
again this demand for the navigation of the Mississippi stood in the
way. We were represented by two able men--Gallatin and Rush--who went
over the old ground of right of Gray's discovery, etc., but made the
mistake of not asserting an exclusive right to the territory in
dispute. Agreement being impossible, compromise was resorted to, and the
unfortunate Treaty of Joint Occupancy, signed October 20th,
1818 "determined the boundaries of the United States westward to
the Rocky Mountains."

The following article of this treaty will give its general scope as
influencing our own coasts of the Northwest:

"It is agreed that any country that may be claimed by either
party on the Northwest Coast of America westward of the Stony Mountains
shall, together with its harbors, bays and creeks, and the navigation of
all rivers within the same, be free and open for the term of ten years
from the date of signature of the present convention, to the vessels,
citizens, and subjects of the two powers. It being well understood that this agreement is not to be construed to the prejudice of any claim
which either of the two high contracting powers may have to any part of
the said country."

It seems at this day a mystery, unless our Government believed that
"the game was not worth the candle," that we should have
consented to such a treaty, which, whatever might have been its
temporary conveniences, seems to admit a doubt of our rights to claim
the whole as absolutely belonging to the United States. At all events,
it gave England just what she desired--an opportunity to make the
territory British in sentiment, by encouraging settlers of her own
nationality.

It is simply impossible within the scope of this history to

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enter into the details of a controversy so complex and protracted. It
might be styled the thirty years' war of peaceful negotiation. As for
the substantial results of the conflict, we are inclined to believe that
though we hold nearly all that we claimed, Great Britain, who came into
court without a case, gained the verdict--at least she succeeded,
between bullying and cajoling, in obtaining Vancouver's Island, all of
which should have been our own. In 1826 Henry clay, then Secretary of
State, says in his instructions to Albert Gallatin, our Minister at the
court of Saint James:

"Nor is it conceived that Great Britain has or can make out even
a colorless title to any portion of the northern coast." By the
renunciation and transfer contained in the treaty with Spain in 1819,
our right extended to the sixtieth degree of latitude."
Later on he tells Mr. Gallatin that "our offer of the forty-ninth
parallel was conceived ina genuine spirit of concession and
conciliations, and it was our ultimatum, and he might so announce
it." This the British negotiators rejected, and then like a trumpet
blast comes the declaration which should have been maintained
throughout: "Say to Great Britain that the American Government does
not hold itself bound hereafter, in consequence of any proposal which it
has heretofore made, to agree to the line which has been so proposed and
rejected, but will consider itself at liberty to contend for the full
extent of our just claims, which declaration you must have recorded in
the protocol of one of your conferences; and to give it more effect,
have it stated that it was done by express direction of the
President."